Is "fertility equality" a human right? Analysing the access to commercial surrogacy for cisgender gay male couples in Europe (and beyond)

Scientific advances in the field of assisted reproduction have led to the emergence of a new demand: the right of cisgender male gay couples to have biological children. To realise this right, gay men need access to assisted reproduction technologies, especially commercial surrogacy. Some scholars have argued that the right can be inferred from the right to (reproductive) health, the right to non-discrimination, and/or the right to private and family life (Tobin, 2014; Russel, 2018).

However, a considerable body of literature opposes this idea, emphasising the exploitation of women that commercial surrogacy creates and/or reinforces and its negative impact on surrogates, children, egg donors, and entire communities (Field, 2014; Brazier and Waxman, 2016). Importantly, while lesbian couples have become more widely accepted as parents, male (non-heteronormative) parenthood is still treated with suspicion (Collier, 2010).

In international law, it is possible to find both, pronouncements that commercial surrogacy is tantamount to sale of children (United Nations, 2018) and court judgments recognising legal bond between children born through surrogacy and intended parents (ECtHR, 2019). At domestic level, while most states prohibit commercial surrogacy, Colombia and some US states have legalised it.

Many countries allow "reimbursement" for surrogates. Thus, in2022 the Hague Conference on Private International Law (HCCH) called for the unification of international rules concerning surrogacy to provide greater predictability and certainty legal parentage in international situations. Additionally, while the protection of sexual and reproductive rights (SRR) has improved globally, many countries still discriminate against LGBTQ+ communities. Ukraine, Russia, and Georgia prohibit access to surrogacy for gay couples.

Consequently, this PhD project addresses the following question: Could international and regional human rights law be interpreted in a way that supports the recognition of the right to "fertility equality" for cisgender gay male couples? If so, what are the implications of this understanding for the regulation of commercial surrogacy in Europe and beyond?

To address these questions the project will first analyse feminist and queer scholarship concerning fatherhood and non-heteronormative family structures. Second, it will examine human rights doctrine and equality theory concerning sexual and reproductive rights of cisgender gay men and commercial surrogacy. Third, it will analyse existing legal principles regulating the reproduction of cisgender gay couples, embedded in international, transnational, and regional instruments, the jurisprudence of human rights courts and other bodies, and public policies.

Although European human rights law will constitute an analytical starting point, the study will include the evaluation of relevant laws in other geographical contexts across the world.

The project is of utmost importance. First, it will address an important gap in legal literature. Second, will aim to inform the HCCH's draft regulations on commercial surrogacy.

Third, it will help governments, courts, and legislators to take informed decisions concerning sexual and reproductive rights of cisgender gay men. Finally, it will provide members of the LGBTQ+ community with clarity about their right to found a family, with the potential to make a significant contribution to reducing inequalities, as set out in the United Nations' SDG 10.